****EXECUTIONS SCHEDULED FOR APRIL 17, 20, 24, and 27, 2017****
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JASON McGEHEE, STACEY JOHNSON,
BRUCE WARD, TERRICK NOONER,
JACK JONES, MARCEL WILLIAMS,
KENNETH WILLIAMS, DON DAVIS,
and LEDELL LEE,

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)
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)
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Plaintiffs,
)
)
v.
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ASA HUTCHINSON, Governor of the
)
State of Arkansas, in his official capacity, and )
WENDY KELLEY, Director, Arkansas
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Department of Correction,
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in her official capacity,
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Defendants.
)

Case Number

_________

COMPLAINT
1. Plaintiffs are nine inmates currently on death row in Arkansas. The Governor has set
eight of their execution dates for a ten-day period at the end of April, with two
executions to occur back-to-back on four separate nights. The executions are
scheduled as follows, at a time not yet disclosed to inmates or their counsel:


Don Davis and Bruce Ward on April 17, 2017;



Stacey Johnson and Ledell Lee on April 20, 2017;



Marcel Williams and Jack Jones on April 24, 2017; and



Jason McGehee and Kenneth Williams on April 27, 2017.

 The order of executions on each date is unknown.
2. Plaintiffs bring this action under 42 U.S.C. § 1983 for (1) violations and threatened
violations of their right to be free from cruel and unusual punishment under the
Eighth and Fourteenth Amendments to the United States Constitution; (2) violations
and threatened violations of their right to counsel during the pre-execution period,
as guaranteed by 18 U.S.C. § 3599; and (3) violations of their right to access the
courts and to § 3599 counsel during the executions themselves. Plaintiffs seek
equitable, injunctive, and declaratory relief.
Jurisdiction and Venue
3. Jurisdiction over this matter arises under 28 U.S.C. §§ 1331 (federal question) and
1343(a)(3) (civil rights violations and equitable relief under an act of Congress). This
Court also has jurisdiction to enforce its orders appointing counsel under 18 U.S.C. §
3599.
4. Venue is appropriate in the Eastern District of Arkansas under 28 U.S.C. § 1391(b).
Parties
5. Plaintiffs are all citizens of the United States and of Arkansas. They are all deathsentenced inmates currently incarcerated at the Varner facility of the Arkansas
Department of Correction (“ADC”), which is in the Eastern District of Arkansas and
under Defendants’ supervision and control. With the exception of Nooner, Plaintiffs
all have pending execution dates as set out in Paragraph 1.
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 6. Defendant Wendy Kelley is the Director of the ADC. She or her designee is
statutorily responsible for “order[ing] the dispensation and administration of the
drug or drugs . . . for the purpose of carrying out the lethal-injection procedure.”
Ark. Code Ann. § 5-4-617(b). Kelley is statutorily responsible for conducting “an
execution for a sentence of death” or for designating “some assistant or assistants”
to do so. Ark. Code Ann. § 16-90-502(b), (d). Kelley alone is responsible for
“develop[ing] logistical procedures necessary to carry out the sentence of death.”
Ark. Code Ann. § 5-4-617(g).
7. Defendant Asa Hutchinson is the Governor of Arkansas. He is the final executive
authority in the state. As Governor, Hutchinson is statutorily responsible for setting
execution dates by warrant. Ark. Code Ann. § 16-90-507(a). The Governor also has
the power to suspend execution of a judgment of death. Ark Const. art. 6, § 18; Ark.
Code Ann. § 16-90-506(c)(1).
Facts
A. Arkansas’s lethal-injection protocol.
8. Arkansas statute provides two options for execution by lethal injection: “(1) a
barbiturate; or (2) Midazolam, followed by vecuronium bromide, followed by
potassium chloride.” Ark. Code Ann. § 5-4-617(c).
9. Kelley has adopted a written and largely undisclosed lethal-injection protocol for
executions using midazolam (“midazolam protocol”).
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 10. The entirety of Plaintiffs’ knowledge about the midazolam protocol is encompassed
in a public document known as “Attachment C.” Attachment C describes the
procedure for mixing the execution drugs and for injecting them into Plaintiffs. This
document is attached to this Complaint as Exhibit 1.
11. Attachment C calls for the drugs to be administered in the following manner. First,
the executioner will inject 500 mg of midazolam, which is intended to—but which,
as described further below, will not—render the condemned inmate insensate to the
pain caused by the subsequent drugs. Second, five minutes after the midazolam has
been injected, the executioner will inject 100 mg of vecuronium bromide, which is
intended to paralyze the condemned inmate. Third, the executioner will inject 240
mEq of potassium chloride, which is intended to stop the condemned inmate’s heart
and to cause his death.
12. Between injection of the midazolam and injection of the vecuronium bromide,
Attachment C calls for the ADC’s Deputy Director, or his designee, to “confirm the
condemned inmate is unconscious by using all necessary and medically-appropriate
methods.” If the condemned inmate remains conscious, the executioner will inject
another 500 mg midazolam. Attachment C is silent on what happens if the
condemned inmate remains conscious after that.
13. Attachment C calls for IV lines to be set up by an unknown number of people called
the “IV team.” Members of the IV team are to have at least two years of professional
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 experience in one of the following disciplines: emergency medical technician–
intermediate; emergency medical technician–paramedic; nurse; physician assistant;
or physician. The Deputy Director or his designee, who is the person directly in
charge in the execution chamber, is not required to have these qualifications, though
she must be “healthcare trained, educated, and/or experienced in matters related to
the establishment and monitoring of IVs, the mixing and administration of the
chemicals, and assessing the presence or absence of consciousness.” If there is a
problem with the IV lines, unknown “trained, educated and experienced person(s)
necessary to establish a primary IV line as a peripheral line or as a central venous
line will be summoned to facilitate an IV infusion site.”
14. Plaintiffs have sought additional information about the lethal-injection procedure.
See Exhibit 2. Kelley’s counsel responded to these requests in a letter dated March
15, 2017, attached as Exhibit 3, as follows:
a. Kelley refuses to disclose execution protocols besides Attachment C.
b. Kelley has no documents establishing whether the IV team members will
remain the same during the eight executions that Kelley intends to carry out
from April 17, 2017, to April 27, 2017.
c. Kelley has no documents other than Attachment C explaining what she
considers to be “necessary and medically-appropriate methods” for

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 determining whether a condemned inmate is unconscious after the injection
of midazolam.
d. Kelley has no documents other than Attachment C concerning plans for
suspending the execution should there be a problem with the IV lines.
e. Kelley has no documents establishing a contingency plan for stopping the
execution if the condemned inmate appears to be conscious after the
midazolam is administered.
B. Botched midazolam executions.
15. Since 2014, there have been at least four botched executions across the United States
using midazolam.
a. On January 16, 2014, Ohio executed Dennis McGuire using a combination of
10 mg midazolam and 40 mg hydromorphone. The execution took twentyfive minutes and “was accompanied by movement and gasping, snorting and
choking sounds.” Erica Goode, After a Prolonged Execution in Ohio, Questions
over ‘Cruel and Unusual’, N.Y. TIMES, Jan. 17, 2014, available at
http://nyti.ms/2glQUyI.
b. On April 29, 2014, Oklahoma executed Clayton Lockett using 100 mg
midazolam followed by a paralytic and potassium chloride. Lockett awoke
during administration of the second and third drugs. Though the execution
was halted, Lockett died forty minutes after the execution began. See Glossip
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 v. Gross, 135 S. Ct. 2726, 2782 (2015) (Sotomayor, J., dissenting). This execution
was scheduled to be a double execution, with Lockett followed by Charles
Warner. After the botch, the Oklahoma Department of Public Safety
concluded that executions should be spaced at least seven days apart. See
Exhibit 4.
c. On July 23, 2014, Arizona subjected Joseph Wood to an execution in which he
was injected with 750 mg midazolam and 750 mg hydromorphone. Wood
“gasped and snorted for nearly two hours” before he finally died. Glossip, 135
S. Ct. at 2791; see also Mark Berman, Arizona Execution Lasts Nearly Two Hours;
Lawyer Says Joseph Wood Was ‘Gasping and Struggling to Breathe,’ WASH. POST,
July 23, 2014, http://wapo.st/2nsiJrk. Wood’s attorneys convened a hearing
during the execution. See Exhibit 5.
d. Most recently, on December 8, 2016, Alabama executed Ronald Bert Smith
using 500 mg of midazolam followed by 600 mg of rocuronium bromide
followed by 240 mEq potassium chloride. This protocol is effectively the same
as the one Arkansas intends to use. During the execution, which took thirtyfour minutes, Smith “was apparently struggling for breath as he heaved and
coughed for about 13 minutes.” Mark Berman & Robert Barnes, After Divided
Supreme Court Allows Alabama Execution, Inmate Heaves and Coughs During
Lethal Injection, WASH. POST, Dec. 9, 2016, available at http://wapo.st/2hnRs7p.
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 According to Spencer Hahn, an attorney for Smith present at the execution,
two minutes after the midazolam began flowing, Smith began having
“regular asthmatic-sounding barking coughs every ten seconds or so.”
Exhibit 6 ¶7. “He also lifted his head and looked around, moved his arms,
clenched his left hand, and moved his lips in what appeared to be an attempt
to say something. [His] eyes never closed, and he moved and coughed
regularly throughout approximately the next fifteen minutes.” Id. Smith was
awake after the first consciousness check, “as he was still moving his head,
hands and arms, coughing, and attempting to speak.” Id. ¶8. After the second
consciousness check, Smith’s “eyes remained open” (despite a guard’s
attempt to push his left eye closed), and Smith “moved his right arm.” Id.
¶10–11. “Shortly thereafter, they must have administered the paralytic, as
[Smith’s] breathing became very shallow and he stopped moving. His eyes
remained open, with the left eye opening further as his breathing became
imperceptible.” Id. ¶11.
16. In light of midazolam’s obvious impropriety as an execution drug, state corrections
departments have abandoned it. Kentucky abandoned it in 2014. Arizona has
recently agreed that it will never again use midazolam in an execution. Florida has
eliminated midazolam from its most recent execution protocol.

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 C. Kelley’s drug supply.
17. Arkansas statute allows Kelley to choose the quality of the drugs she will use in
executions. The drugs may be “approved by the United States Food and Drug
Administration [(“FDA”)] and made by a manufacturer approved by the [FDA]” or
they may be “obtained by a compounding pharmacy that has been accredited by a
national organization that accredits compounding pharmacies.” Ark. Code Ann. § 54-617(d).
18. Compounded drugs are much riskier than FDA-approved drugs. FDA-approved
drugs come with manufacturer-provided labels; compounded drugs do not. Kelley
has previously provided (redacted) labels for the midazolam and the vecuronium
bromide. She has refused to provide labels for the potassium chloride.
19. Kelley obtained the ADC’s supply of midazolam sometime in the summer of 2015.
Its expiration date is April 2017. Kelley obtained the vecuronium bromide in July
2016. Its expiration date is March 1, 2018. Kelley obtained the potassium chloride in
March 2017. Its expiration date is August 2018.
20. Kelley has previously tested some of the ADC’s execution drugs to ensure their
purity and potency. She tested the current supply of midazolam in November 2015
and provided Plaintiffs with a redacted report showing the midazolam was
sufficiently potent at that time. See Exhibit 7. She tested the vecuronium bromide in

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 July 2016 but has not provided any record of the results. Plaintiffs do not know
whether she has tested the potassium chloride.
D. Hutchinson’s execution schedule.
21. In Arkansas, the Governor sets execution dates after receiving a letter from the
Attorney General asking him to do so. On Friday, February 24, 2017, the Attorney
General sent letters requesting execution dates for all Plaintiffs but Nooner. On
Monday, February 27, Hutchinson ordered the execution schedule set out in
Paragraph 1.
22. Hutchinson has admitted in press interviews that he scheduled the executions so as
to exhaust the State’s supply of midazolam before it expires. See Matthew Haag &
Richard Fausset, Arkansas Rushes to Execute 8 Men in the Space of 10 Days, N.Y. TIMES,
Mar. 3, 2017, available at http://nyti.ms/2ln3kc4.
23. Since the return of the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976), no state
has carried out executions in such a compressed time frame. No state has attempted
as many as eight executions in even a month since 1997.
24. No state has conducted a double execution since 2000. The last time a double
execution was attempted, in 2014, the result was the botched Lockett execution,
discussed in Paragraph 15b. The Lockett execution spurred an investigation in
which the Oklahoma Department of Public Safety recommended that “executions
should not be scheduled within seven calendar days of each other” and that there be
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 sufficient time between executions for a review in which “all involved personnel
[may] voice their opinions, concerns and/or recommendations in order for
continuous improvement to the process.” See Exhibit 4 at 28.
E. Kelley’s policies governing the execution.
25. Historically, Kelley’s predecessors in office have permitted multiple attorneys to
view executions.
26. Despite Kelley’s refusal to share any execution policies besides Attachment C,
Plaintiffs’ counsel have sought additional information about whether each Plaintiff’s
attorneys will be able to witness their client’s execution and whether they will have
access to a phone during the execution. See Exhibit 8.
27. Kelley’s counsel has informed Plaintiffs’ counsel that if a Plaintiff has more than one
attorney, only one attorney will be allowed to witness the execution. See Exhibit 9.
28. Kelley’s counsel has informed Plaintiffs’ counsel that a Plaintiff’s attorney will not
have access to a telephone during the execution if she chooses to view the execution.
See Exhibit 10.
29. Kelley’s predecessor provided Plaintiffs a more complete version of the ADC’s
execution procedures, AD 08-28, which became effective on May 22, 2008. Exhibit 11.
AD 08-28 places no restrictions on attorney viewing or phone access during the
execution. Because Kelley has not provided later versions of the procedures, it is
unknown when the viewing and telephone policies changed.
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 30. Kelley’s policies prevent any witness, including the attorneys, from viewing and
hearing the complete execution process. The policies do not permit witnesses to
view the execution until the IV lines have been affixed to the prisoner and the drugs
are ready to flow. Members of the execution team have discretion to pull the curtain
during drug flow in the event of a problem. Audio to the witness room is shut down
after the inmate’s last words.
CLAIM I (ON BEHALF OF ALL PLAINTIFFS BUT NOONER): THE COMPRESSED EXECUTION
SCHEDULE RESULTS IN DENIAL OF PLAINTIFFS’ RIGHT TO COUNSEL PURSUANT TO 18 U.S.C.
§ 3599.
31. The previous paragraphs of this complaint are incorporated by reference as if fully
stated herein.
32. The execution of eight of the Plaintiffs in a period of ten days denies each of them
the effective representation of counsel, which was guaranteed to them when they
were appointed counsel by the federal courts under 18 U.S.C. § 3359.
Unambiguously, this federal statute provides that death-sentenced inmates are
entitled to appointment of counsel. The statute recognizes that counsel is authorized
to represent Plaintiffs in various stages of capital litigation including “applications
for stays of execution and other appropriate motions and procedures, and shall also
represent the defendant in such competency proceedings and proceedings for
executive or other clemency as may be available to the defendant.”

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 33. Each Plaintiff set to be executed has been appointed counsel under this statute. The
current execution schedule, in a serial fashion and with only two months’ notice for
the setting of all eight execution dates, denies each of them the effective
representation of counsel in each of the areas guaranteed by § 3599, including, but
not limited to, effective and meaningful representation during executive clemency
proceedings, effective and meaningful representation in competency proceedings,
effective and meaningful representation concerning stays of executions, and
effective and meaningful representation in other motions and proceedings
concerning execution of their sentence of death. See Harbison v. Bell, 556 U.S. 180, 190
(2009).
34. The current schedule places an inordinate burden on counsel, who represent
multiple clients with execution dates. Consequently, it has a deleterious effect on the
adequacy of the legal representation counsel is able to provide. The effect of the
compressed execution schedule amounts to denial of counsel contemplated by §
3599. This denial can easily be remedied by spreading the execution dates out over a
more reasonable time period.
35. Counsel must prioritize any client who is facing an execution date. However, an
execution date does not dispel deadlines in counsel’s other pending cases. The
burden of an execution date upon a pre-existing caseload is expected. The undue

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 burden of multiple execution dates upon counsel’s caseload is rare and extremely
difficult. This burden erodes effectiveness of representation.
36. Each Plaintiff has been appointed counsel by either the United States District Court
for the Eastern or Western District of Arkansas under 18 U.S.C. §3599. 21 U.S.C. §
848(q) was recodified in 2006 as 18 U.S.C. § 3599. The provisions in § 848 remain the
same. See Harbison, 556 U.S. at 190.
37. On March 7, 2000, Jack Jones moved for appointment of counsel under 21 U.S.C. §
848 and McFarland v. Scott, 512 U.S. 849 (1994). Motion, No. 4:00mc0008-JMM, E.D.
Ark., ECF Doc. 1. This motion was granted on April 1, 2000, and counsel was
appointed. Order, ECF Doc. 2. Jeff Rosenzweig represents Jones.
38. On July 27, 2001, Don Davis moved for appointment of counsel. Motion, No. 5:01-cv05188, W.D. Ark., ECF Doc. 1. This motion was granted on August 2, 2001, and Al
Schay was appointed. Order, ECF Doc. 2. On May 13, 2004, Deborah Sallings was
appointed as pro bono counsel without compensation. Order, ECF Doc. 34. After Al
Schay’s death in January 2016, on March 20, 2017, the Court entered an order
appointing the Capital Habeas Unit of the Federal Public Defender for the Eastern
District of Arkansas to represent Davis under 18 U.S.C. § 3599. Order, ECF Doc. 45.
39. On September 17, 2002, Jason McGehee moved for appointment of counsel. Motion,
No. 4:02-mc-00015-SWW, E.D. Ark., ECF Doc. 1. On the same day, an order was

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 entered appointing Al Schay and the Federal Public Defender’s Office for the
Eastern District of Arkansas. Order, ECF Doc. 2.
40. On February 25, 2002, Al Schay moved to be appointed to represent Marcel
Williams. Motion, Case No. 4:02mc00005SMR, E.D. Ark., ECF Doc. 1. This motion
was granted on March 18, 2002. Order, ECF Doc. 5. On November 12, 2002, Schay
moved that the Federal Public Defender’s Office for the Eastern District of Arkansas
be appointed as co-counsel. Motion, ECF Doc. 6. This request was granted on
December 2, 2002. Order, ECF Doc. 7.
41. On July 12, 2004, Kent Gipson and William C. Odle moved to be appointed to
represent Ledell Lee “pursuant to U.S.C. § 848(q)(B) and 18 U.S.C. § 3006(A).”
Motion, No. 5:01cv00377 JH, E.D. Ark., ECF Doc. 26 at 1. On July 28, 2004, this
motion was granted. ECF Doc. 27. Subsequently, Gary Brotherton was substituted
for Odle. On May 24, 2016, Gipson sought to withdraw. ECF Doc. 148. This motion
was denied on July 18, 2016. ECF Doc. 155. On August 16, 2016, Lee Short was
permitted to substitute for Brotherton, as Brotherton had been suspended from the
Missouri Bar because of mental illness. ECF Doc. 157.
42. On May 23, 2006, Stacey Johnson moved for appointment of counsel under 21 U.S.C.
§ 848 and McFarland v. Scott, 512 U.S. 849 (1994). Motion, No. 4:06mc00017GH, E.D.
Ark., ECF Doc. 1. This motion was granted on June 6, 2006, and Jeff Rosenzweig was
appointed. Order, ECF Doc. 2.
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 43. On April 9, 2007, Kenneth Williams moved for appointment of counsel under 21
U.S.C. § 848 and McFarland v. Scott, 512 U.S. 849 (1994). Motion, No. 4:07mc00008,
E.D. Ark., ECF Doc. 1. This motion was granted on April 12, 2007, and Jeff
Rosenzweig was appointed. Order, ECF Doc. 2.
44. On August 26, 2015, Jennifer Merrigan was appointed to represent Bruce Ward
along with the Federal Public Defender’s Office for the Eastern District of Arkansas.
Order, No. 5:03-cv-00201-BSM, E.D. Ark., ECF Doc. 170. The Federal Public
Defender had been appointed on June 10, 2003. Order, ECF Doc. 5. On December 14,
2015, the Court granted a motion to permit Joseph Perkovich to substitute for Joe
Luby. Order, ECF Doc. 174. Merrigan and Perkovich represented two other clients
who were executed in other states earlier this year, thus reducing the time they have
had to devote to Ward’s case and requiring them to rely on the work of the CHU.
45. Undersigned attorney Jeff Rosenzweig represents Stacey Johnson, Jack Jones, and
Kenneth Williams individually with effectively no co-counsel. Dale Adams was also
appointed to represent Jones, but Adams’s recent involvement has been limited to
correspondence with Jones and the ADC on some of Jones’s medical issues. Gerald
Coleman was appointed to represent Johnson. Coleman has performed essentially
no work on the case. Rosenzweig is also co-counsel for Jason McGehee.
46. Undersigned attorneys from the Federal Public Defender’s Capital Habeas Unit
(CHU) for the Eastern District of Arkansas represent Marcel Williams and Jason
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 McGehee. The CHU is also co-counsel for Bruce Ward and Don Davis. Of note,
Bruce Ward and Don Davis are scheduled to be executed on the same day during
the first round of executions.
47. Undersigned attorney Lee Short represents Ledell Lee. Short only came into the case
after Lee’s longtime attorney Gipson unsuccessfully sought to withdraw. Short has
been provided only seven months to become knowledgeable about Lee’s case, to
create a working relationship with Lee, and to begin investigation for potential
litigation and clemency issues. Gipson, who is technically still appointed, has been
unable to provide guidance.
48. The scheduling of eight executions in ten days unduly strains the resources of the
CHU office, of Jeff Rosenzweig, and of Lee Short; requires an inordinate amount of
counsel’s time; and significantly decreases the quality of representation afforded
Plaintiffs.
49. There is a small community of counsel qualified to represent an inmate under
warrant of death. The complexity of a capital case, including the voluminous record,
prevents last-minute entry of alternate counsel to alleviate the burden of multiple
execution dates on current counsel.
50. This hardship is further exacerbated by the fact that these executions were
announced and set on February 27, 2017, giving all counsel less than sixty days to
prepare for these executions, consult with their clients, apply for clemency, and
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 litigate important constitutional claims on an exceptionally short and altogether
inadequate timetable.
51. There is no more serious undertaking than representing a client facing a death
sentence. This undertaking is most serious when the client is under a death warrant.
Multiple death-penalty attorneys will attest to the enormous responsibility placed
on capital counsel once execution warrants are set. See Exhibit 12 (Declaration of
Brian Mendelsohn); Exhibit 13 (Declaration of Robert Edward Lee, Jr.); Exhibit 14
(Declaration of Dale A. Baich). Those responsibilities include the following:
a. Counsel must litigate issues not legally available until an execution is imminent,
such as challenges to competency to be executed. See, e.g., Panetti v. Quarterman,
551 U.S. 930, 942–48 (2007) (claims regarding competency to be executed not ripe
until after an execution date has been scheduled).
b. Counsel must pursue executive clemency, which, in Arkansas, is not available to
an inmate until his execution date is set. This pursuit includes extensive
investigation and preparation of the petition.
c. Counsel must pursue challenges that seek to ensure that any execution process is
fair and that do not ripen until the execution process is set in place. See Ohio
Adult Parole Authority v. Woodard, 523 U.S. 272 (1998).

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 d. Counsel must frequently consult with the client, must communicate with the
client’s family and friends, and must make arrangements with the client in the
event he is executed.
e. Counsel must determine whether issues disposed of in earlier proceedings may
be revisited due to subsequent developments in the law.
52. Rosenzweig and the CHU attorneys will potentially be required to challenge the
execution process up until moments before, or even during, the execution itself.
Then they will have to continue challenging that process for another client just
minutes after watching another client die.
53. Congress recognized that taking on these substantial obligations takes significant
time. The legal proceedings in death-penalty cases are notoriously lengthy and
complex. Establishing a detailed understanding of these proceedings is a timeconsuming task and a basic prerequisite to competent performance. Competent
representation of inmates under an execution warrant takes substantial time.
54. Competent representation of a client under an execution warrant also takes
substantial emotional resources. Competent representation in capital cases requires
establishing a relationship of trust with the client. In the context of this relationship,
the client will often share the most sensitive details of his life. No matter how
professional the relationship between a death-sentenced client and his counsel,
having a client executed is a uniquely taxing professional experience.
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 55. The scheduled pace of executions is preventing and will prevent Plaintiffs’ counsel
from performing competently as contemplated by Congress when it enacted § 3599.
It is professionally and emotionally impossible to pursue all avenues of litigation
and defense available to each Plaintiff currently scheduled for execution due to (1)
the setting of executions with such short notice, which drastically compresses the
amount of time available to prepare clemency petitions and litigation and (2) the
setting of eight executions to occur over a span of just ten days when certain
Plaintiffs are represented by the same counsel.
56. It will be professionally and emotionally impossible for counsel to fully, adequately,
and competently represent a client by witnessing his execution and raising
challenges (if warranted) while also preparing for the execution of another client
either on the same night or within a matter of days—time after time after time.
57. Even if competent representation of a single client were possible in the expedited
timeframe in which these executions were set, the physical and psychological toll of
litigating under warrant and losing one or more clients prevents competent
representation of subsequent clients. Additionally, the impending prospect of losing
additional clients detracts and distracts from the ability to fully focus on critical
matters that may arise in the days and moments leading up to—and during—
executions of Plaintiffs that are scheduled on the first date.

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 58. Undersigned counsel also have other pre-existing cases and responsibilities,
including other clients whose cases must still be litigated. The burden imposed by
multiple death warrants will prevent adequate and competent advocacy in those
cases, potentially giving rise to more issues—including ineffective assistance of
counsel—to be litigated in the future.
Denial of Counsel in Clemency Proceedings
59. The right to effective and meaningful counsel in state clemency proceedings is
guaranteed by 18 U.S.C. § 3599. Harbison v. Bell, 556 U.S. 180 (2009). A clemency
application alone is a substantial undertaking, requiring a “complete and
persuasive” presentation, “utilizing all appropriate resources in support (e.g.,
relevant outside organizations, the trial judge, prominent citizens), and discussing
explicitly why the clemency-dispenser should act favorably notwithstanding the
repeated affirmation of the client’s conviction and sentence by the judicial system.”
ABA Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases (“ABA Guidelines”), Guideline 10.15.2: Duties of Clemency Counsel
(Feb. 2003).
60. Preparing for the clemency process requires a thorough examination of all prior
phases of the case and independent investigation to tailor the clemency presentation
to the client and case. Counsel must also ensure that consideration of the client’s
clemency application is substantively and procedurally just.

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 61. Generally, if executions are spaced apart by a period of weeks or months, as they
have been in the past, counsel is afforded time necessary to give complete focus to
the client in most imminent danger of execution—including the clemency process (if
the client desires)—before shifting focus to the next client.
62. Stacey Johnson, Ledell Lee, Marcel Williams, Jason McGehee, and Kenneth Williams
are all seeking executing clemency. Jeff Rosenzweig is therefore responsible for
preparing two clemency applications (for Stacey Johnson and Kenneth Williams)
and preparing for two clemency hearings (and securing witnesses, paperwork, etc.)
within a span of less than two weeks on very short notice. The CHU likewise is
responsible for preparing two clemency applications (for Marcel Williams and Jason
McGehee) and preparing for two day-long clemency hearings (and securing
witnesses, paperwork, etc.) within a span of less than a week on very short notice.
63. Plaintiffs were given seventeen days at most to file their clemency applications.
Some were given only eight days. Johnson and Lee had ten days; Marcel Williams
had fifteen days; McGehee and Kenneth Williams had seventeen. Even seventeen
days is an insufficient amount of time, especially considering counsel’s other
professional obligations that are ongoing during this time, including competing
clemency applications and other obligations to these clients themselves.

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 Denial of Counsel for “Appropriate Motions and Procedures”
64. The current compressed time period leaves absolutely no time for a critical
assessment or debriefing period after each execution. Those assessments will
generally include an autopsy report, review of practices and procedures, gathering
feedback from participants, checking qualifications of those involved, etc. This is a
vitally important step in the process and an important safeguard against
unconstitutional practices.
65. The compressed schedule leaves no time for this critical assessment period after the
initial execution and no time for an assessment period after the subsequent
executions until the last one is performed. Counsel rely on these assessments to
determine whether Defendants’ actual practices (as opposed to the written protocol,
which is far from exhaustive) are in line with what is required by state law and the
United States Constitution. This compressed schedule prevents counsel from
presenting meaningfully “any appropriate motion” or initiating any meaningful
“procedure” concerning the executions as they happen over the ten-day period.
Denial of Counsel for “Applications for Stays of Execution”
66. Under the ABA Guidelines, the paramount duty of counsel in a capital case is to
seek a stay of execution. Guideline 10.15.1(B). This duty is reflected in § 3599 which

23

 mandates that counsel pursue “applications for stays of execution and other
appropriate motions and procedures.”
67. The execution of eight inmates in a period of ten days denies each of them the
effective representation of counsel guaranteed by 18 U.S.C. § 3359. Harbison v. Bell,
556 U.S. 180, 190 (2009).
68. It is an impossible task for counsel to effectively litigate on behalf of each client
during overlapping periods of time, or to litigate on behalf of one client and then
gear up within minutes or hours to zealously advocate for the next client on the
assembly line of death.
69. Stays of executions are often litigated until the final moments before an execution
takes place and may even be litigated during an execution if an issue arises.
70. Counsel will be required to visit with each client numerous times during the period
leading up to the client’s execution, especially in the days just before and the day of
the scheduled execution. This entails travel to and from Grady, Arkansas, from
counsel’s offices in Little Rock, as well as time spent going through security and
with the client himself. Counsel will likely make daily trips to and from Grady
during the critical time period, beginning just before the first scheduled executions
(over Easter weekend) and throughout the following weeks as additional clients are
scheduled for execution. At the same time, counsel must also be litigating
vigorously on behalf of each client, coordinating with each client’s family and
24

 friends, and making practical arrangements attendant to an execution. It is simply
not possible for counsel to perform effectively in these circumstances.
71. Furthermore, the current schedule places counsel in violation of both state and
federal ethical guidelines.
72. Arkansas Rule of Professional Conduct 1.3 mandates that counsel “shall act with
reasonable diligence and promptness in representing a client.” Comment 2 to this
Rule states that a “lawyer’s work load must be controlled so that each matter can be
handled competently.” The scheduling of executions for three or four clients
represented by a single counsel or office within a ten-day period presumptively
violates this state ethical duty.
73. Guideline 10.3 of the ABA Guidelines states that counsel should limit their caseloads
so as to provide “each client with high quality legal representation in accordance
with” the ABA Guidelines.
74. Because counsel in these circumstances must be familiar with complex and nuanced
issues that arise in litigation for stays of executions and the clemency process, as
well as with the extensive record of the case and with the client himself, counsel
cannot unload a case onto new counsel at the last minute. That in itself would
violate counsel’s ethical obligations to the client.
CLAIM II (ON BEHALF OF ALL PLAINTIFFS BUT NOONER): EXECUTIONS IN THE CURRENT
COMPRESSED TIMEFRAME VIOLATE THE EIGHTH AMENDMENT.

25

 75. The previous paragraphs of this complaint are incorporated by reference as if fully
stated herein.
76. Governor Hutchinson has scheduled eight men to be executed over the span of ten
days, commencing on Easter Monday, April 17, 2017, with two men to be executed
on each of four nights as set out in Paragraph 1. This compressed schedule poses an
unnecessary and objectively intolerable risk of substantial harm that is sure or very
likely to occur. The compressed schedule is also contrary to evolving standards of
human decency.
77. Because the death penalty is the most serious penalty available to a state, and
because of its unique irrevocability, the procedures for such penalty must be
implemented in a reasoned, deliberate, and ultimately constitutional manner.
78. Any execution imposes an extraordinary amount of stress on corrections officers
and others involved in the elaborate process.
79. The stress is multiplied when multiple executions are scheduled for the same day, or
when executions are scheduled without a reasonable period for rest, recovery, and
assessment, including participants’ self-assessment of their well-being and
willingness to participate in additional executions.
80. As former corrections officials attest, the stress placed on corrections officers during
a ten-day string of executions will heighten physical and mental fatigue, will
prevent any meaningful post-execution review of death-chamber procedures, and
26

 will accordingly increase the risk that the condemned inmate will suffer during the
execution. “[I]t would essentially be professional malpractice for only department of
corrections official to attempt to stage eight executions as currently scheduled in
Arkansas.” Exhibit 15 at 6 (Declaration of Jennie Lancaster).
81. Execution teams are generally made up largely of staff from the department of
corrections. Corrections officers are not hired executioners. They are tasked with the
protection of inmates in the custody of the department of corrections. Killing people
is certainly outside their regular course of duty and is an extraordinary task.
82. The intricacies of an execution go far beyond what happens during the final hour.
Each step in the process requires focus and attention to detail. Just one mistake at
any point can have disastrous consequences.
83. The people who will make up the execution team(s) for Plaintiffs’ scheduled
executions will be called upon to take part in the killing of an otherwise healthy
human being, under intense scrutiny and pressure, in a process that they have little
to no prior experience with, using a drug that has not been used before for
executions in this State. And then they are going to be asked to do it again. And then
come back to work and do it again. And again. And again. And again. And again.
And finally again for the eighth time. With little to no rest in between.
84. Once the execution or double-execution process is over, the veil of secrecy
enshrouding that process prevents the participants from seeking solace from their
27

 friends, church groups, or even co-workers. The State has indicated in
communications with the press that counseling will be made available to all staff
members involved. Given the current schedule, however, staff members will have
no meaningful opportunity to receive any necessary or desired counseling between
executions, particularly those executions scheduled for the same day. The
availability of such counseling is necessary to ensure a healthy and appropriate
mindset and level of focus and professionalism required for each execution.
85. Physical, emotional, and mental fatigue of those involved in this execution schedule
substantially increases the risk that a critical detail will be overlooked, that a mistake
will be made, and that Plaintiffs will unconstitutionally suffer the consequences.
86. Defendants’ obligations do not cease once an execution has been performed. For
instance, procedures must be followed for appropriate handling and medical review
of the body. Each Plaintiff’s property must be accounted for and distributed to a
designated person or persons. Each Plaintiff has a family and friends who will be
impacted by these executions, and Defendants have a responsibility to ensure that
appropriate outreach is made to those people. All of this activity will presumably be
ongoing at the same time other executions are being prepared for and carried out.
87. Preparation for each individual execution requires individual attention to each
Plaintiff. Each Plaintiff must be medically evaluated and have their vein viability
checked. Each Plaintiff is to be provided access to a spiritual adviser. Each Plaintiff
28

 must be counseled on an individual basis about what to expect during their
executions. Traditionally, each Plaintiff would receive a last meal of their choosing
before their execution. In the days leading up to the execution, Plaintiffs will be
transported to the death house. Provisions must be made to house multiple deathrow inmates in a different facility to await their executions. Visits from family
members, legal counsel, and spiritual advisers are to be accommodated. A detailed
log is to be made of each Plaintiffs’ activities while they await execution. The drugs
to be used in each execution must be measured, mixed, put in syringes, and
transported to the death house. Equipment must be inventoried and inspected. All
of these things, and more, are required of the numerous people involved in the
preparation for each execution, before the actual execution even begins. All of these
actions are significant in ensuring that the human dignity of each condemned man is
retained in our civilized society in accordance with the Constitution.
88. In light of the complex and coordinated nature of executions, and the intense
scrutiny under which they are performed, the increased stress of even two
executions in quick succession poses an objectively intolerable risk of substantial
harm. That risk is compounded by the prospect of doing eight executions in quick
succession.
89. If Defendants proceed with this schedule, they are doing so in deliberate
indifference to Plaintiffs’ constitutional rights. Defendants are on notice that
29

 multiple executions, especially those using midazolam, are stressful and likely to
result in objectively intolerable pain suffered by Plaintiffs. The one state—
Oklahoma—to even attempt a double execution using midazolam as the first drug in
a three-drug protocol was unable to complete both executions as scheduled.
90. After the botched execution of Clayton Lockett in Oklahoma, an investigation of
Oklahoma’s execution practices (which were substantially similar to what Arkansas
has planned) found that intravenous lines in Lockett’s case had been mishandled in
part because of the “extra stress” from the state’s scheduling of two executions on
the same day. After the bungling of Lockett’s execution, the second execution
scheduled for that same day did not occur. The report resulting from the Lockett
investigation recommended that executions not be scheduled within seven calendar
days of each other in deference to manpower and facility concerns. See Exhibit 4.
Those same concerns are heightened in this case, with not one but four doubleheader midazolam executions scheduled over a ten-day period in a state that has not
performed an execution in over eleven years.
91. The Missouri Supreme Court recently adopted a rule limiting the number of
executions to be carried out in a one-month period. The rule, effective January 1,
2016, reads that “[t]he department of corrections shall not be required to execute
more than one warrant of execution per month.” Mo. S. Ct. R. 30.30(f).

30

 92. In tacit recognition of the unnecessary stress and risk involved in multiple or mass
executions and in recognition of our society’s evolved standards of decency, no state
(apart from Oklahoma’s failed attempt in 2014, which in itself is a cautionary tale)
has conducted multiple executions in one day in seventeen years. And no state in
modern history has attempted to execute so many men in such a short time period.
93. Arkansas has not executed anyone since November 29, 2005, and has not carried out
a dual execution since September 8, 1999. Defendant Kelley has not presided over an
execution. It is unknown whether any member of the team or teams that will execute
Plaintiffs has ever participated in an execution. Unless participants are being
recruited from out of state, certainly none of the participants will have taken part in
an execution involving midazolam. The collective institutional memory as to the
intricate process involved in an execution by lethal injection is minimal to nonexistent in the ADC. And there is no viable protocol for execution by assembly line.
94. In this situation, it is vitally important that there be a period of time after an
execution for quality assessment and debriefing. All persons involved in the
intricate and complex procedure of lethal injection, which requires coordinated
movements and action by multiple teams of people, must be assessed after any
execution—but certainly after the first execution a state performs in over eleven
years. Other states engage in a comprehensive post-execution assessment to identify
problems, discuss improvements, and make necessary modifications to the lethal31

 injection process. See, e.g., Ohio Execution Procedures § VI.I.10–12, available at
http://bit.ly/2n9PeKs.
95. The compressed schedule, with two executions scheduled for April 17, 2017, and
two more every three or four days thereafter until April 27, leaves no time for this
critical assessment period after the initial execution and no time for an assessment
period after the subsequent executions until the last one is performed. Indeed, the
preparation for all eight executions is presumably happening on an overlapping
basis, without any regard for the individualized challenges posed by each unique
Plaintiff. If the current schedule proceeds, no meaningful assessment will be possible
until all eight executions have been performed. The State will have no time to
determine how to correct errors that occur during earlier executions.
96. Defendants have indicated through the media that they believe this schedule is no
less onerous than spreading executions out over the course of months. No rationale
for that belief has been given, which is especially problematic given Defendant
Kelley and Defendant Hutchinson’s lack of experience overseeing executions.
Plaintiffs’ request for communications between the ADC and the Governor’s office
on the workability of the execution schedule was denied. See Exhs. 2–3.
97. There is no justifiable rationale to hold multiple executions on the same day. Nor is
there a justifiable rationale to hold eight executions within ten days. The expiration

32

 of a drug that Defendants have already shown they can obtain is not a valid reason
for rushing these executions.
98. Under the current schedule, the additional stress on execution participants—with its
attendant increase in the potential for error—creates a substantial risk that Plaintiffs
will be subject to unnecessary pain and suffering during their executions.
99. Ultimately, the schedule set out in Paragraph 1 pushes the contemplated executions
outside the bounds of evolving (and evolved) standards of decency. Our country
does not participate in mass executions. Execution schedules such as the one
Defendants contemplate do not respect the innate human dignity of the condemned,
who are to suffer the ultimate punishment at the hands of the State in the name of
the State’s citizens.
100.

To the extent that pleading an alternative is necessary for this claim, the

alternative is simple: the ADC can easily choose a different schedule. The ADC must
give adequate notice and time to prepare for each execution. It must ensure that
executions are appropriately spaced so as not to overburden or overtax necessary
resources and personnel. And it must ensure that each execution is given sufficient
attention to detail on an individualized basis.
CLAIM III (ON BEHALF OF ALL PLAINTIFFS): USE OF MIDAZOLAM AS THE FIRST DRUG IN A
THREE-DRUG PROTOCOL VIOLATES THE EIGHTH AMENDMENT’S PROHIBITION AGAINST
CRUEL AND UNUSUAL PUNISHMENT.

33

 101.

The previous paragraphs of this complaint are incorporated by reference as if

fully stated herein.
102.

Use of midazolam as the first drug in Arkansas’s three-drug protocol poses an

objectively intolerable risk of substantial harm that is sure or very likely to occur.
Alternative execution methods that would avoid this risk are feasible and readily
available to Kelley. Accordingly, the execution protocol Kelley intends to use in
Plaintiffs’ executions would cause cruel and unusual punishment proscribed by the
Eighth Amendment.
A. Midazolam cannot anesthetize Plaintiffs to the suffering the second and third
drugs cause.
103.

Pharmacological experts and anesthesiologists familiar with midazolam have

determined that its inclusion in a three-drug execution protocol is all but certain to
cause Plaintiffs excruciating suffering. See Exhibit 16 (Declaration of Craig Stevens,
Ph.D.); Exhibit 17 (Declaration of Joel Zivot, MD). The reasons for that conclusion
are as follows:
104.

The second drug in the midazolam protocol, vecuronium bromide, paralyzes the

recipient’s diaphragm and prevents breathing. Exhibit 17 ¶12. Administered by
itself, it leaves the recipient unable to communicate and feeling as if he has been
buried alive. Researchers have determined that vecuronium bromide should not be
used alone because it causes serious psychic trauma. Exhibit 16 at 19–20.

34

 105.

The third drug in the midazolam protocol, potassium chloride, stops the heart.

Administered by itself, it would cause the recipient to experience an excruciating
burning pain. Exhibit 16 at 20–21; Exhibit 17 ¶13.
106.

Unless the prisoner is placed under general anesthesia, he will feel the physical

and psychological suffering caused by the second and third drugs in the midazolam
protocol. Exhibit 16 at 21. Anesthesia occurs on a spectrum; a level of sedation lower
than general anesthesia in a lethal injection is insufficient. Id. at 9–11.
107.

Midazolam is a benzodiazepine, a class of drug that also includes Valium and

Xanax. Unlike barbiturates, which are typically used in lethal injections and which
can render general anesthesia, midazolam has no independent depressive effect.
Rather, it binds with a neurotransmitter called “GABA” to produce sedation.
Because GABA is present in limited quantities in the brain, midazolam’s sedative
properties are also limited. Id. at 4–8. Scientists refer to this as the drug’s “ceiling
effect.” Id. at 8; Exhibit 17 ¶21.
108.

Midazolam’s ceiling effect prevents it from producing general anesthesia. Thus,

it cannot render Plaintiffs insensate to the pain and suffering caused by the
vecuronium bromide and the potassium chloride. 500 mg midazolam will sedate
Plaintiffs, but it will not anesthetize them to pain. Exhibit 16 at 34. The executioner
could pump Plaintiffs with a limitless amount of midazolam, but they would still be
aroused by the harrowing effects of the second and third drugs.
35

 109.

The second drug in the protocol has the additional effect of preventing Plaintiffs

from communicating any distress caused by the third drug. Were there no paralytic,
the arousal and pain caused by the potassium chloride would be obvious to any
observer. Id. at 33. With the paralytic, the observer is prevented from seeing
something that is scientifically verifiable to pharmacological experts: midazolam is
incapable of anesthetizing the prisoners to the agonizing pain caused by the third
drug.
B. There are multiple alternative execution methods that are feasible, readily
available, and that would significantly reduce Plaintiffs’ suffering.
110.

The State could execute Plaintiffs by a lethal injection of FDA-approved,

manufactured pentobarbital. Pentobarbital is a barbiturate and would adequately
anesthetize Plaintiffs to the pain the second and third drugs otherwise would cause.
At least one other state (Missouri) has obtained FDA-approved, manufactured
pentobarbital in the recent past. See Exhibit 18. Additionally, Arkansas has passed
laws to shield drug suppliers from public view, Ark. Code Ann. § 5-4-617(i)(2), thus
facilitating its ability to acquire drugs, as exhibited by its recent purchases of
vecuronium bromide and potassium chloride.
111.

A two-drug cocktail of midazolam and potassium chloride would reduce a

significant quantum of suffering inherent in the three-drug protocol. Though
Plaintiffs would still feel the effects of the potassium chloride, they would not
experience the psychological trauma and sensation of being buried alive that the
36

 vecuronium bromide causes. The vecuronium bromide serves only to inflict
gratuitous torment, which the Constitution forbids. A two-drug cocktail will effect
Plaintiffs’ deaths while removing a significant and unnecessary element of suffering.
This method is obviously available and feasible.
112.

Execution by firing squad would be a more humane and reliable means of death

than the torturous chemical procedure Defendants now use. Properly performed—
and proper performance is a simple matter for trained marksmen—execution by
firing squad will cause a painless and nearly instantaneous death. See Exhibit 19
(Declaration of Dr. Jonathan I. Groner). The State has all the personnel and
implements necessary to carry out an execution by firing squad. And such a method
is plainly feasible, as evidenced by Utah’s use of a firing squad in 2010. Utah has a
detailed protocol for firing squad executions, which it would be easy for Arkansas to
either adopt or adapt. Exhibit 19.
113.

An injection of compounded pentobarbital, implemented with appropriate

safeguards, would significantly reduce the risk of Plaintiffs’ suffering. Like FDAapproved, manufactured pentobarbital, compounded pentobarbital would
adequately anesthetize Plaintiffs to the pain caused by the second and third drugs.
Compounded drugs come with additional risks, but with easily implemented
safeguards—for example, acquisition from a reputable pharmacy and adequate
testing of the drug—this method would significantly reduce the suffering the
37

 midazolam protocol is sure to cause. Compounded drugs are available to the State—
indeed, Texas and Georgia, states that have carried out numerous executions in
recent years, have done so with compounded pentobarbital.
114.

Execution using a massive overdose of sevoflurane as the sole lethal agent would

significantly reduce the pain and suffering inherent in the midazolam protocol.
Sevoflurane is a gas that has the same mechanism of action as barbiturate drugs and,
like barbiturates, is sufficient to cause death on its own. Exhibit 16 at 34–35. The gas
is available to the ADC for use in executions from Piramal Critical of Bethlehem, PA.
Exhibit 21 (Declaration of Joseph Cummings). The equipment required for
administration is also available from online vendors, and medical expertise is not
required to operate it. Exhibit 16 at 35.
115.

Execution by nitrogen hypoxia would significantly reduce the pain and suffering

inherent in the midazolam protocol. Hypoxia is a process favored by right-to-die
proponents in which a gas displaces a person’s oxygen supply, thereby causing
rapid unconsciousness and a painless death within minutes. Oklahoma has recently
adopted hypoxia as a feasible execution method. Exhibit 22. Louisiana has also
studied it. Exhibit 23. These states have concluded that the supplies needed for
nitrogen hypoxia are widely available for purchase.

38

 C. In the alternative, the State’s unwillingness to even consider more humane
execution methods dispenses with the need for Plaintiffs to plead and prove
alternative execution methods to show an Eighth Amendment violation.
116.

In October 2016, the Committees of the Arkansas House and Senate Judiciary

met jointly to consider a possible study of nitrogen hypoxia as an alternative
execution method. The legislator sponsoring the study pitched it as a way to explore
more humane execution methods. Cory Cox, the Attorney General’s legislative
director, told the Joint Committees they should not adopt hypoxia because the
current midazolam protocol is preferable. Rep. Laurie Rushing told the Joint
Committees, in comments quoted by the Arkansas Democrat-Gazette, that Plaintiffs
and others on death row “need to be punished instead of wasting taxpayer money,”
“even if it’s in the least humane way.” See John Moritz, Execution by Gas Gets Panel
Flak, ARK. DEM.-GAZ., Oct. 11, 2016, at A1 (attached as Exhibit 24). The Joint
Committees elected not to study hypoxia after these comments.
117.

In March 2017, Rep. Jimmy Gazaway filed a bill “to establish a more humane

method of execution” and to sanction hypoxia as an execution method. The bill was
withdrawn three days later, for reasons unknown.
118.

The State has shown that it is unwilling to even consider an execution method

that is more humane than the midazolam protocol. Typically a prisoner is required
to plead and prove a feasible and readily available alternative execution method to
successfully challenge the current method. However, if such an effort would be
39

 futile, and if the State has exhibited that it would rather use “the least humane”
execution method instead of “wasting taxpayer money,” the prisoner need not show
that an alternative exists. The State’s insistence on a gratuitously painful execution
method is sufficient to show an Eighth Amendment violation.
CLAIM IV (ON BEHALF OF ALL PLAINTIFFS): THE EXECUTION PROTOCOL (OR LACK THEREOF)
VIOLATES THE EIGHTH AMENDMENT’S PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENT.
119.

The previous paragraphs of this complaint are incorporated by reference as if

fully stated herein.
120.

Choice of drugs aside, the current lethal-injection protocol carries unacceptable

risks of severe pain in violation of the Eighth Amendment. Defendants have failed to
employ available safeguards that would avoid much of the risk inherent in lethal
injection. Defendants should adopt procedures and safeguards that will
substantially mitigate the grave risks of suffering lethal injection entails.
A. The protocol (or absence of protocol) carries objectively intolerable risks of
suffering.
121.

The avoidable risks incumbent in the Defendants’ plan to execute the Plaintiffs

include the following:
i.

122.

Risks caused by improper training, lack of adequate personnel, or lack of
adequate protocol.
Lack of Sufficient Training, Education, and Expertise. The ADC lethal injection

protocol sets vague and improperly low or non-existent professional criteria for
40

 execution team members responsible for setting IV lines, mixing and verifying
drugs, and injecting drugs. The protocol does not require a physician to supervise
and monitor the administration of any of the three drugs. No member of the
execution team is required to be qualified by professional training and education to
administer anesthesia, nor must they be licensed to do so under Arkansas law or
regulations. While the protocol requires that the IV team have some kind of training
and experience, it has no requirement that the training and experience be recent.
There is no requirement in the protocol that the executioners (who actually inject the
lethal chemicals) be medically trained.
123.

Cursory “Consciousness” Check. It is essential that Plaintiffs achieve general

anesthesia before they are injected with the second or third drugs. There is a
continuum of sedation, the deepest being general anesthesia. Only general
anesthesia is sufficient to prevent the experiencing of painful stimulus. As set forth
in Claim Three, midazolam is unsuitable to achieve general anesthesia, and the
consciousness check is futile. Exhibit 16 at 21. Assuming the drug were capable of
inducing general anesthesia, the execution protocol fails to provide necessary
guidance to assess for general anesthesia.
124.

Attachment C provides that, after the injection of midazolam, the Deputy

Director or designee “will confirm the condemned inmate is unconscious by using
all necessary and medically-appropriate methods.” Exhibit 1 at 5. The term
41

 “unconscious” is not a term of art. Exhibit 17 ¶20. A sleeping person is
“unconscious,” but she would wake when injected with vecuronium bromide,
which causes air hunger, or potassium chloride, “the chemical equivalent of burning
alive.” Glossip, 135 S. Ct. at 2795. It is possible for a person to exhibit no movement,
suppressed reflexes, and no responsiveness to verbal or physical stimuli and still not
have reached the surgical plane of anesthesia. Exhibit 17 ¶20. Thus, there is a
substantial risk that plaintiff will be judged “unconscious” by the Deputy Director
or designee but will immediately regain awareness and experience pain upon the
injection of vecuronium bromide or potassium chloride. Id. ¶22.
125.

Plaintiffs requested additional documents regarding how the execution team

would determine if the Plaintiffs are “unconscious.” The ADC responded that they
have “no additional records, beyond Attachment C, which are responsive to [the]
request.” Exhibit 3. Failure to provide guidance to execution-team members on how
to assess for a sufficient level of anesthesia creates a substantial risk that Plaintiffs
will be aware and sensate to the painful effects of the second and third drugs.
Exhibit 17. ¶¶20–22.
126.

Even if the ADC provided sufficient guidance regarding the appropriate plane of

anesthesia, the protocol fails to require personnel with sufficient training and
education to assess anesthetic depth. The protocol provides that the person who
“assess[es] the presence or absence of consciousness” will have two years of
42

 professional training and certification as an Emergency Medical Technician (EMT),
Nurse, Physician’s Assistant, or Physician. Exhibit 1 at 6. In all but rare cases, an
EMT, nurse, or physician’s assistant lacks sufficient experience to assess anesthetic
depth. Even a physician, if not an anesthesiologist, lacks the training and experience
to assess anesthetic depth during general anesthesia for surgical procedures.
Assessing sedation depth is a complicated process that requires simultaneous
consideration of numerous sources of information, including but not limited to
movement, changes in blood pressure and respiratory rate, brain waves and
electrical activity, initiation of skin moisture, and enlarged pupils. To verify a
surgical plane of anesthesia, a person must have extensive training and clinical
experience in monitoring anesthetic depth. Exhibit 17 at 22.
127.

Even if midazolam were capable of inducing general anesthesia, and even were

the personnel qualified to assess for onset and maintenance of general anesthesia,
the protocol fails to provide necessary equipment to monitor anesthetic depth.
Equipment exists for medical professionals to monitor physiological signs of
anesthetic depth, such as brain activity. Id. ¶21. The protocol fails to require this
equipment be used and fails to require qualified personnel to operate and interpret
the equipment.
128.

Lack of Resuscitation Plan/Equipment. As explained in Paragraph 15 and in

Claim Three, it is all but certain that the midazolam will not anesthetize the
43

 Plaintiffs and that they will still be able to move, vocalize, and feel pain after the
injection of the sedative. Plaintiffs requested that the ADC provide “all policies,
documents, correspondence, or records of any kind in the Department’s possession
that concern the Department’s contingency plan, including any plan for stopping the
execution, should the prisoner appear to be conscious after administration of the
backup syringes, or should the prisoner show movement at any point during the
execution.” Exhibit 2. In failing to turn over the documents requested, the ADC
responded as follows: “[T]he ADC has determined that there are no additional
records, beyond Attachment C, which are responsive to your request. In so
responding the ADC notes that your request seeks records related to a hypothetical
fact situation not specifically referenced in Attachment C. Nonetheless, the response
is the same. There are no records responsive to this inquiry, beyond Attachment C.”
Exhibit 3.
129.

Attachment C itself fails to create any contingency plan for the very real

likelihood that the midazolam will fail to render the inmate insensate to pain, or the
very real likelihood that the inmate will show signs of consciousness after he feels
the suffocating effects of the vecuronium bromide or the intense pain of the
potassium chloride. The protocol fails to provide for this contingency and have at
the ready personnel, equipment, and medication to reverse the effects of a tortuous,

44

 botched execution attempt. For example, in Arizona, Joseph Wood gasped for air for
almost two hours after he was injected with midazolam. See Exhibit 5.
130.

Due to the massive dosage of midazolam, the inmate could suffer reduced

oxygen to the brain because of a collapsed airway or the inability to sense and clear
his own airway. Exhibit 17 ¶24. The reduction in oxygen could create sub-lethal
brain damage. In the event that the prisoner is conscious and suffering through
these events, the ADC is deliberately indifferent to his suffering by failing to have on
hand a readily available antidote for midazolam. The effect of the midazolam can be
reversed with the administration of flumazenil. Id. At least one state, Ohio, has
opted to secure flumazenil to reverse the effects of the midazolam in the event it is
not successful at anesthetizing the prisoner. See Andrew Welsh Huggins, Ohio Is
Looking for an Antidote for Lethal Injections, Just in Case, Toronto Star, Jan. 13, 2017,
available at http://on.thestar.com/2nsy5fn.
131.

If the inmate moves after injection with vecuronium bromide, the ADC should

reverse the effect of that drug. The effects of vecuronium bromide can be reversed
with the drug sugammadex. Exhibit 17 ¶23.
132.

In the event a Plaintiff moves after the burning effects of the potassium chloride

are felt, that too can be reversed with successive injections of insulin, D-50 (dextrose
and water), and calcium chloride. Id. ¶25.
ii.

Risks inherent in the administration of drugs.
45

 133.

IV Setting. The execution protocol fails to require that the person setting the IV

lines has sufficient training and education. The protocol provides that the person
who sets the IV will have two years of professional training and certification as an
EMT, nurse, physician’s assistant, or physician. Exhibit 1 at 6. However, the protocol
fails to require that this training be recent or that the certification be current. Two
years of training or certification in the requisite disciplines, at some point unknown,
does not equate to capability of establishing venous access in an execution chamber.
134.

Failure to provide for sufficient safeguards regarding establishment of venous

access creates a risk of painful execution through repeated attempts at venous
access, infusion of the injection site, or perforations in the vein. If the injection site
becomes infiltrated, the chemical flows into the tissue rather than the vein and does
not enter the circulatory system. Exhibit 17 ¶17. Moreover, the protocol places no
time limits or limits on attempts to secure venous access by sticking needles into
Plaintiffs, a safeguard that at least one state, Kentucky, has previously adopted by
requiring the execution cease if the executioners fail to locate a vein after an hour.
135.

If venous access is not achieved through the arms, the protocol provides that

other “possible infusion sites” will be evaluated. If peripheral venous access is not
established, the protocol calls for gaining central access. A central line involves the
placement of an intravenous tube directly into the large vein in the neck, the chest,
or the groin. This is a complicated medical procedure. When a central line is placed,
46

 the vein is not visible to the eye. In a clinical setting, a central line would be placed
with the assistance of an ultrasound machine. An EMT or nurse does not have the
requisite training and experience to place a central line. A physician’s assistant
would not set a central line without the supervision of a physician. The lethalinjection protocol allows for the placement of a “blind” central line by unqualified
persons. Worse still, without equipment to verify the placement of the central line, it
is likely that the person placing the line will not be aware it is misplaced. A
misplaced central line can cause the lung to collapse, which can lead to a painful
death by suffocation and cardiovascular collapse. Id. ¶18.
136.

Drug Pushing. The lethal chemicals are administered by two executioners in a

chemical room, which is separated from the execution chamber by a one-way
mirror. There is a hole in the wall through which IV tubing travels between the body
of the condemned and the chemical room. The protocol provides that the gurney
shall be positioned so that the executioners can see the face of the condemned
inmate. Exhibit 1 at 1. However, the distance between the inmate and the chemical
room prevents the executioners from seeing the veins of the condemned in order to
regulate proper flow of chemicals.
137.

The lethal-injection protocol provides that two syringes containing 250 mg of

midazolam be injected into the vein of the condemned inmate. This is about 1/3 a
standard measuring cup of liquid. With such a high volume of liquid and such a
47

 large syringe, if the plunger of the syringe is pushed too quickly, the vein will burst,
causing pain and infiltration of the site. In order to prevent bursting the veins of the
condemned, the person pushing the plunger on the syringe should be able to see the
vein to regulate proper rate of flow. The distance between the executioner and the
condemned creates an unnecessary risk of pain. Exhibit 17 ¶19.
138.

Even if the executioner were able to see the vein of the condemned from their

distant chamber, they lack the proper qualifications to monitor subtle changes in
vein appearance and adjust administration of the chemicals accordingly.
139.

Precipitation. Because of the large dose of midazolam called for in the protocol,

there is also a substantial risk that the drug will precipitate when mixed with the
saline present in the intravenous line or the blood in the inmate’s vein. Precipitation
is caused when a strong acid is mixed with a weak acid or base. Midazolam has a
pH of 2.5-3.5. Normal saline has a pH of 5-6. When the two substances are mixed
either in the line or the vein of the inmate, it is likely that a salt will be formed which
can obstruct the line and cause pain in the vein. The midazolam precipitate is
pharmacologically inactive and will lower the amount of midazolam delivery in a
completely unpredictable fashion. Id. ¶10.
140.

Paradoxical Effects. Another risk associated with the large dose of midazolam

used in the lethal injection protocol is that the drug will have the opposite effect and
cause hyper-reactivity, agitation, and movement. The protocol, which calls for the
48

 administration of more midazolam if unconsciousness is not achieved, will only
make the agitation worse. Id. ¶11.
iii.
141.

Risks inherent in the composition of pharmaceuticals.
Expired or Expiring Drugs. The ADC will use midazolam with the expiration

date of April 2017. Assuming midazolam could render general anesthesia at all, use
of midazolam close to the expiration date creates a substantial risk that it will have
reduced efficacy and thus subject Plaintiffs to intolerable pain upon injection of the
second and third drugs. Id. ¶14.
142.

Recalled Drugs. Certain midazolam injection drugs are subject to recall due to

“failed impurities/degradations.” Due to Defendants’ refusal to disclose the source
of the midazolam, Plaintiffs are unable to determine whether this recall affects the
expiring drugs in the ADC’s possession.
143.

Drug Storage. The execution protocol fails to create adequate safeguards against

degraded or impure midazolam by not specifying the conditions under which the
execution drugs are to be stored. Improper storage can speed the degradation of
pharmaceuticals. The label on the midazolam Defendants intend to inject into
Plaintiffs requires the product be stored at a temperature of between 68 and 77
degrees Fahrenheit. See Exhibit 25.
144.

Drug Inspection. The protocol fails to require that a qualified person (such as a

physician or pharmacist), or any person, inspect the lethal chemicals for particulate
49

 matter or discoloration prior to administration of the drug. When a solution that is
supposed to be clear turns cloudy, it indicates one of a number of serious problems
that render the drug unusable and dangerous. One reason for a drug appearing
cloudy is suspended particulate matter. Injection of a substance with particulates
can cause extreme pain if the particulate lodges in a small blood vessel. On March 2,
2015, Georgia halted the execution of Kelly Gissendaner because the drugs had
become cloudy. See Gissendaner v. Bryson, 2015 WL 10710264 (N.D. Ga Aug 10, 2015).
Arkansas’s lethal-injection protocol contains no similar safeguards.
145.

Drug Preparation. The execution protocol requires the Deputy Director or

designee to mix or reconstitute the chemicals and to prepare the syringes and then
transport the chemicals in a box to the Cummins Unit. Exhibit 1 at 1. The
preparation of drugs in advance, at a distant location, creates a risk that they will
become mislabeled, contaminated, and at an increased risk of falling out of solution
as a precipitate. Drugs sold in sterile injectable form are designed to be placed into a
syringe and injected immediately. Defendants’ plan to execute two inmates on a
single night means that the drugs used in the second execution will have been stored
in the syringes for two to three additional hours and are even more likely to become
contaminated or fall out of solution. The protocol’s requirement that the drugs be
transferred to syringes at a distant location hours before the execution creates an
unnecessary risk of substantial harm to the plaintiffs. Exhibit 17 ¶16.
50

 146.

In sum, Plaintiffs’ executions under the current protocol (or lack thereof) are all

but certain to cause unnecessary pain. There is a substantial risk that Defendants’
failures to provide sufficient guidance and safeguards in their lethal-injection
protocol will cause Plaintiffs to needlessly suffer in their last hours of life. There is
also a significant risk that the execution will fail and that Plaintiffs will suffer
irreversible brain damage. Plaintiffs have a fundamental right under the Eighth
Amendment to be free from cruel and unusual punishment.
B. Alternatives are available that would eliminate the substantial risks of harm
inherent in the protocol (or lack of protocol).
147.

The alternatives to the ADC’s defective protocol are easily stated. Defendants can

and should adopt sufficient safeguards, as detailed below, in order to avoid the
substantial risks detailed above. Those safeguards include the following:
i.

148.

Safeguards to prevent risks caused by improper training, lack of adequate
personnel, or lack of adequate protocol.
Medical Training. Defendants can and should require that persons with current

and appropriate pharmacy and medical training and experience perform the critical
functions of drug inspection, drug mixing, IV setting, level-of-anesthesia
determination, and injection of lethal chemicals. Medical doctors can and do
participate in executions throughout the country. See Ty Alper, The Truth About
Physician Participation in Lethal Injection Executions, 88 N.C. L. REV. 11 (2009).

51

 149.

Anesthesia Determination by Qualified Individual Using Medically Accepted

Methods. The Defendants can and should require that the second and third drugs
not be administered until it is determined that the Plaintiffs have reached a surgical
plane of anesthesia, which renders them insensate to pain and unaware of their
surroundings. This can be accomplished by using a person with the training and
experience to make such a determination, such as an anesthesiologist or a Certified
Registered Nurse Anesthetist. Defendants can and should make proper equipment,
such as a BIS machine, available for this purpose. Defendants can and should
require Plaintiffs to be continually assessed for signs of awareness during the lethal
injection.
150.

Provision of Life-Saving Equipment and Antidotes. Defendants can and should

have available equipment, personnel, and medication necessary to revive Plaintiffs
in the likely event that the execution fails and the inmate remains conscious.
Defendants should have on hand antidotes for the midazolam, vecuronium
bromide, and potassium chloride. These include flumazenil, sugammadex, insulin,
D-50, and calcium chloride. Exhibit 17 ¶¶23–25.
ii.
151.

Safeguards to prevent risks inherent in administration of drugs.
Provision for Proper IV Insertion. Defendants can and should make available

sufficient safeguards to mitigate the risk that the IV will be improperly inserted or
infiltrate the vein. First, Defendants can and should secure the assistance of medical
52

 professionals with recent experience and current credentials qualifying them to
place IVs in the Plaintiffs. Second, Defendants can and should provide sufficient
catheters of various lengths and gauges to accommodate the physiological
differences between each Plaintiff. Defendants can and should make available the
equipment necessary to place a central vein, such as an ultrasound machine, a
central line kit, and an x-ray machine. Id. ¶¶17–18.
152.

Time Limit on Vein Attempt. Defendants can and should place a reasonable

time-limit in which they will discontinue the execution if they are unable to obtain
venous access. At least one other state (Kentucky) has limited the endeavor to one
hour.
153.

Executioner Positioning and Qualifications. The executioners pushing the drugs

should be positioned so as to have an adequate view of the Plaintiffs’ veins and
should have adequate training in intravenous drug administration. Id. ¶19.
154.

Drug Pushing. The executioners pushing the drugs should administer the drug

at a slow rate and monitor the IV line to avoid precipitation and vein compromise.
Id.
iii.
155.

Safeguards to prevent risks inherent in drug composition.
Use of Fresh Drugs. Defendants can and should use drugs that are not within

days of expiration.

53

 156.

Disclosure of Drug Manufacturer. Defendants can and should disclose the

manufacturer of the execution drugs to allow Plaintiffs and the Court to determine
whether there are recalls affecting the product.
157.

Requirement of Proper Drug Storage. Defendants can and should require that the

lethal-injection chemicals be stored in accordance with the requirements of the label.
158.

Drug Inspection. Defendants can and should require that a qualified person

inspect the lethal-injection chemicals before they are transferred to syringes and
again before they are placed in the chemical room at the Cummins Unit.
159.

Drug Testing. Defendants can and should test their drugs for potency. Because

degradation is a continuum, recent testing for drug potency is a necessary
safeguard. The midazolam was tested November 2015 and its potency was at 99.2
percent. Exhibit 7. Given that 16 months have passed and the drug is near the date at
which it can longer be safely used, Defendants can and should retest the drug. In
addition, the vecuronium bromide and potassium chloride should be tested for
impurities, and sub- or super-potency. Testing is an appropriate safeguard against
the use of counterfeit, mislabeled, super-potent, or sub-potent drugs.
CLAIM V (ON BEHALF OF ALL PLAINTIFFS BUT NOONER): THE COMBINED EFFECT OF
MIDAZOLAM EXECUTIONS OCCURRING WITHOUT ADEQUATE SAFEGUARDS AND ON A
COMPRESSED SCHEDULE VIOLATES THE EIGHTH AMENDMENT.

54

 160.

If neither the schedule, nor the use of midazolam, nor the lack of adequate

protocol constitutes an independent constitutional violation, they substantiate a
constitutional violation in combination.
161.

The lack of institutional knowledge occasioned by an eleven-year gap in

executions in Arkansas calls for prudence and caution in restarting the machinery of
death—not a rushed, mass execution.
162.

The complexity of lethal-injection procedures—from extraction and delivery of

the drugs through examination of the body—requires minute attention to detail and
intricate coordination under an intense amount of pressure. That pressure is
increased by the rushed schedule, which also prevents the inexperienced
Defendants from performing necessary reviews and debriefs of involved parties
subsequent to each execution.
163.

Certainly no one at the ADC has performed an execution using midazolam,

which has a history of causing botched executions across the country. The ADC has
confirmed there is no contingency plan in place when something goes foreseeably
wrong with the execution. Neither are there other appropriate and necessary
safeguards in place. Taking into consideration the complexity of the procedure for
each Plaintiff, the added pressure of eight executions in ten days, the lack of time
necessary for review, and the lack of experience of those involved at the highest
levels—combined with the use of a drug that is insufficient for its intended purpose
55

 and that has caused botched executions in the past—there is a substantial and
objectively intolerable risk of suffering and harm to Plaintiffs.
164.

For all the reasons set out above, the protocol, and specific schedule that

Defendants intend to use to execute Plaintiffs constitutes cruel and unusual
punishment under the Eighth Amendment. It is cruel in that it will subject Plaintiffs
to the torturous effects of vecuronium bromide and potassium chloride without
adequate anesthetization and without adequate safeguards in place in the event
things go wrong, as is probable based on the lack of institutional knowledge
combined with the rushed nature of the scheduling. It is also unusual in that no state
in this country in modern history has attempted this many executions in the
timeframe Defendants contemplate and with the other complicating factors
discussed herein.
165.

Should an alternative be required, numerous alternatives to the planned

execution procedure and schedule are known and available, as already set out in
Claims Two, Three, and Four above.
CLAIM VI (ON BEHALF OF ALL PLAINTIFFS): KELLEY’S POLICIES DURING THE EXECUTIONS
VIOLATE PLAINTIFFS’ RIGHT OF ACCESS TO THE COURTS.
166.

The previous paragraphs of this complaint are incorporated by reference as if

fully stated herein.
167.

Plaintiffs have a right to access the courts under the First Amendment and Due

Process Clause. This right guarantees them the ability, through counsel, to contact a
56

 judge during the execution should it appear the execution is being carried out in a
way that violates the Eighth Amendment.
168.

The history of botched midazolam executions in this country, and the additional

risk engendered by Hutchinson’s compressed execution schedule, heightens the
possibility that Plaintiffs’ attorneys will need to access the courts during the
executions to protect their clients’ rights.
169.

Kelley’s policy absolutely prevents each Plaintiff’s attorney from contacting a

judge if the attorney elects to watch the execution. Counsel has a choice: decline to
view the execution and have access to a phone, or view the execution and have no
access to a phone. Kelley’s counsel has made clear that a witnessing attorney will
not be allowed to leave the viewing room and will not be allowed to contact the
courts, or co-counsel located elsewhere, even if the execution lasts hours. Exhibit 10.
170.

Other corrections departments allow attorneys to contact the courts during

prolonged executions and thus to advocate for their clients’ rights. During the twohour-long execution of Joseph Wood, discussed in Paragraph 15c above, three
attorneys attended the viewing. Two were permitted to leave the viewing area
during the execution and to access a phone. An attorney was then able to convene a
thirty-minute hearing with a judge. See Exhibit 5.
171.

Arizona now explicitly allows a witnessing attorney immediate access to a cell

phone: “While the attorney witness is in the witness room, a member of the Witness
57

 Escort Team shall hold one mobile phone designated by the attorney, to be made
available to the attorney in exigent circumstances.” Ariz. Execution Procedures §
1.5.1.3, available a. The attorney is required to leave the witness room while using the
phone. Ohio likewise provides that “at all times after counsel enters the witness
room, counsel shall have free access to the phone near the entrance door of the
Death House.” Ohio Execution Procedures § VI.G.2, available at http://bit.ly/2n9PeKs.
172.

To ensure adequate access to the courts, it is necessary to have at least two

attorneys present at the viewing—one who can access a phone, and one who can
continue to monitor the execution should phone access be necessary.
173.

By preventing witnessing counsel adequate phone access—indeed, any phone

access—during the execution, Kelley’s policy violates Plaintiffs’ right of access to the
courts.
CLAIM VII (ON BEHALF OF ALL PLAINTIFFS): KELLEY’S POLICIES DURING THE EXECUTIONS
VIOLATE THE RIGHT TO COUNSEL UNDER 18 U.S.C. § 3599
174.

The previous paragraphs of this complaint are incorporated by reference as if

fully stated herein.
175.

Under 18 U.S.C. § 3599, indigent persons sentenced to death are entitled to “the

appointment of one or more attorneys.” As explained in Claim One, each Plaintiff
has been appointed an attorney or attorneys under this provision.
176.

Attorneys appointed under § 3599 are authorized to represent the death-

sentenced person “throughout every subsequent stage of available judicial
58

 proceedings, including . . . all available post-conviction process, together with
applications for stays of execution and other appropriate motions and procedures.”
177.

“Available judicial proceedings” and “appropriate motions and procedures”

include motions that counsel may find necessary to make during the execution to
advocate for her client’s right to be free from cruel and unusual punishment.
Counsel for condemned inmates in other states have been forced to file such motions
during prolonged executions.
178.

Kelley’s policies arbitrarily deprive Plaintiffs of the right to have multiple

attorneys witness the execution. Section 3599 envisions the appointment of multiple
counsel for death-sentenced persons, up to and including the execution itself. To
adequately protect the Plaintiffs’ rights, it is necessary to have at least two attorneys
present: one who can respond to any problems that arise, and one who can continue
making a record of the execution. Kelley has no legitimate penological reason for
restricting access to only one attorney—a policy the ADC has never before followed.
Indeed, as recently reported in the media, Kelley is having difficulty finding
sufficient witnesses to the executions, thus space for an additional attorney or
attorneys should not be a concern to the ADC. See Jeannie Roberts, State Hunting for
Volunteers to Witness April’s 8 Executions, ARK. DEM.-GAZ., Mar. 22, 2017, at A1.
(attached as Exhibit 26).

59

 179.

Kelley’s policies prevent the one attorney who is allowed to view the execution

from effectively representing his clients by depriving him of any access to a phone
(and thus to the courts or co-counsel).
180.

Kelley’s policies prevent the one attorney who is allowed to view the execution

from protecting her client’s rights by obstructing her from seeing and hearing the
full execution process. Without a complete view of the execution from the time the
inmate enters the chamber, the attorney has no way of knowing whether the
execution is violating her client’s Eighth Amendment rights. For example, during
the attempted 2009 execution of Romell Broom in Ohio, the executioners repeatedly
pierced Broom with needles for two hours as they unsuccessfully tried to find a
vein. Under Kelley’s policies, Plaintiffs’ attorneys could not raise such a problem
with the courts—indeed, they could not even learn of it. Likewise, Kelley’s policy of
shutting off the chamber audio would prevent Plaintiffs’ attorneys from hearing any
audible reaction Plaintiffs have to the drugs. Plaintiffs’ right to counsel requires that
their attorneys have a complete visual and audio access to the execution from the
time Plaintiffs enter the chamber to the time they are pronounced dead.
181.

By arbitrarily limiting Plaintiffs to one attorney in the witnessing room, and by

preventing even that attorney from perceiving the entire execution and from
contacting the courts in the event of a problem, Kelley’s policies infringe upon the
right to counsel guaranteed by 18 U.S.C. § 3599.
60

 Conclusion and Prayer for Relief
182.

For all of the above reasons, Plaintiffs respectfully request this Court to:


Rule and declare that the compressed execution schedule violates
Plaintiffs’ right to counsel;



Rule and declare that the current execution schedule is unconstitutional;



Rule and declare that Arkansas’s three-drug protocol is unconstitutional
due to both the use of midazolam and the failure to have appropriate
safeguards in place;



Rule and declare that the use of midazolam, in combination with the lack
of safeguards in the protocol, in combination with the expedited execution
schedule, is unconstitutional;



Rule and declare that Defendants must allow counsel for Plaintiffs to be
able to witness the executions—including the ability to hear and see the
entirety of the process until death is confirmed;



Rule and declare that Defendants must provide ready access to a
telephone during the execution that will allow Plaintiffs’ attorneys to
reach persons responsible for overseeing the execution and any
appropriate governmental or judicial authority;



Rule and declare that Defendants must permit multiple defense team
members to witness the execution if Plaintiffs have multiple attorneys;
61

 

Rule and declare that Defendants must give notice of at least 120 days
prior to the scheduling of any execution in order for counsel to be able to
adequately and competently represent the client scheduled to be executed;



Rule and declare that Defendants must schedule executions so as not to
overburden assigned counsel with more than one client under a death
warrant at any time;



Grant a preliminary and permanent injunction enjoining1 Defendants
from making any attempt to execute any Plaintiff unless access to counsel
is guaranteed throughout the execution process;



Order Defendants to disclose2 to Plaintiffs and Plaintiffs’ counsel the lethal
injection protocol (in full) that will be used during Plaintiffs’ execution at
least 25 days in advance of each execution;



Order Defendants to submit any proposed changes to the execution
protocol to the Court immediately upon making them;

In accordance with Local Rule 7.2(e), Plaintiffs will file a motion for a preliminary injunction to
enjoin Defendants from proceeding with Plaintiffs’ executions under the current protocol and
according to the current schedule.
1

Plaintiffs anticipate filing a motion for expedited discovery detailing the information sought
from Defendants and the expedited schedule requested. As will be set out in that motion,
Plaintiffs will agree to entry of a protective order covering information to be kept confidential
according to the statute in order to expedite disclosure of necessary information.
2

62

 

Order Defendants to disclose to Plaintiffs and Plaintiffs’ counsel as soon as
possible complete information about the drugs that will be used to kill
them, including, but not limited to: what they are, when they were
purchased, from whom they were purchased, testing that has been done
to them, and their National Drug Code identifying number; and



Grant a preliminary and permanent injunction enjoining Defendants from
executing Plaintiffs with inadequate anesthesia and execution procedures
that violate their right to be free from cruel and unusual punishment
under the Eighth Amendment;



Grant a preliminary and permanent injunction enjoining Defendants from
executing Plaintiffs on a schedule that effectively violates their statutory
right to counsel and violates their right to be free from cruel and unusual
punishment under the Eighth Amendment;



Stay the eight executions currently scheduled for April 17, 20, 24, and 27,
2017, until all issues raised in this complaint are resolved; and



Grant any further relief the Court deems proper.

63